Page 236 - Trump Executive Orders 2017-2021

Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents 9939

(1) Conclusion with respect to whether each specification alleges an offense under the
UCMJ;
(2) Conclusion with respect to whether there is probable cause to believe that the accused
committed the offense charged in the specification;
(3) Conclusion with respect to whether a court-martial would have jurisdiction over the
accused and the offense; and
(4) Recommendation as to the disposition that should be made of the charges and
specifications by the convening authority in the interest of justice and discipline.

Rule 406A. Pretrial advice before referral to special court-martial
(a) Jn general. Before any charge may be referred for trial by special court-martial, the convening
authority shall consult a judge advocate on relevant legal issues. Such issues may include:
(1) Whether each specification alleges an offense under the UCMJ;
(2) Whether there is probable cause to believe the accused committed the offense(s)
charged;
(3) Whether a court-martial would have jurisdiction over the accused and the offense;
(4) The form of the charges and specifications and any necessary modifications; and
(5) Any other factors relating to disposition of the charges and specifications in the interest of
justice and discipline.

Rule 407. Action by commander exercising general court-martial jurisdiction
(a) Disposition. When in receipt of charges, a commander exercising general court-martial
jurisdiction may:
(1) Dismiss any charges;
(2) Forward charges (or, after dismissing charges, the matter) to a subordinate commander
for disposition;
(3) Forward any charges to a superior commander for disposition;
(4) Subject to R.C.M. 201(f)(2)(D) and (E), 601(d), and 1301(c), refer charges to a summary
court-martial or to a special court-martial for trial;
(5) Unless otherwise prescribed by the Secretary concerned, direct a preliminary hearing
under R.C.M. 405, after which additional action under this rule may be taken;
(6) Subject to R.C.M. 60l(d), refer charges to a general court-martial.
(b) National security matters. When in receipt of charges the trial of which the commander
exercising general court-martial jurisdiction finds would probably be inimical to the prosecution
of a war or harmful to national security, that commander, unless otherwise prescribed by
regulations of the Secretary concerned, shall determine whether trial is warranted and, if so,
whether the security considerations involved are paramount to triaL As the commander finds
appropriate, the commander may dismiss the charges, authorize trial of them, or forward them to
a superior authority.

Rule 501. Composition and personnel of courts-martial
(a) Composition of courts-martial.
(1) General courts-martial.
(A) Non-capital cases. In non-capital cases, a general court-martial shall consist of:
(i) A military judge and eight members;
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(ii) A military judge, eight members, and any alternate members authorized by the
convening authority;

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